I found 2 published patent applications which cover my business model, should I be concerned?

I am developing a business model which requires a specific API to generate an item which will be sold. I am about to green light our developer to start building the API, but I have found 2 published patent applications (one submitted in 2010 & published 6/2012, and one submitted in 2012 & published 7/2014). One of the patent applications is exactly what I am building. There are 2 companies that currently also have this technology (one established 2/2013, & the other established 5/2014), which neither are the owners of the patent applications. What steps should I take to understand the risk that these patent applications might be granted?

Read the filings. The 2010 patent should have been listed as granted. If
not, it was rejected. Enough time has elapsed. The 2012 should refer to the
2010 as prior art if enough similar, and thus unlikely to be granted.
Change your process enough outside the patent claims to squeak by since the
patent has to be a process and not a concept. See the size of the
organizations to mount a fight against you in court.
Marty Nemzow: mnemzow@gmail.com and cell (+1) 401 481-2660

Read Brad's suggestions first. Examining the file wrapper will let you know what the current status of the application is. Note, just because the Examiner may have raised objections doesn't mean that the applicant may not yet overcome those objections and get his or her claims allowed.

If there is any chance that the patent will issue (and you should hope that it does), you should contact the inventor and negotiate an acquisition or license. Doing so may help him or her obtain the patent (which you will hold exclusive rights to) since you are essentially affirming that it is novel and needed.

While many people complain about patents held by "trolls," the inventor and his patent can be of great value to you. Be the first to work with him and he will reward you by helping you corner the market.

Hi David - UGGH. Patents have become the anti-innovation threat in my opinion. Patent attorneys are hugely expensive but you need one. They'll tell you you have two options: (1) find a way to build a product that works around the patent you found, or (2) a more risky and expensive option - see if you and your patent attorney can get comfortable finding evidence that invalidates the patent. I suppose you could theoretically get a license to it, but not an approach I would suggest. Happy to discuss off line.

You should work with a patent attorney, but if you want to start with some further DIY research, take a look yourself at any records in the Patent Office proceedings for these two applications you are concerned about. It's not the most obvious system, but you would look up the applications on something called Public Pair, here: http://portal.uspto.gov/pair/PublicPair.

From there you can see if the patent applications have been examined yet, whether they have been rejected, abandoned, issued, etc. Click on the tab called "Image File Wrapper" and you can see everything that the patent office or the applicant has filed in the matter. You never know, maybe the applications have been rejected or abandoned, or perhaps the applicants have amended the claims in a way that they are no longer of concern.

I would add to the advice of the others... consult with a patent attorney. The friends I've had in the past who I could have directed you to are no longer available to help [I've since lost contact]. But one of them use to work for a firm out of Dallas, Fish and Rich [which handled a lot of high level suits between companies like Texas Instruments and others in the tech sector]. I know they've handled hardware... and I would expect they've done work on the software side.

http://www.fr.com/

Once you work with an attorney, I would expect answers to things like:

1] can you separate/differentiate your technology from what is covered in the patents [m,aking the patent null in your case].

2] can you prove that the patent is too broad [again, negating the patent if a law auit was brought about].

3] is licensing an option ?

4] can you make something slightly different to accomplish the same task that you can protect with you own patent.

Just because a technology is covered by a patent doesn't make it off limits... it just means that the holder of the patent [if proven valid] is entitled to some value for their idea. I've seen cases before where we took existing patents [from competitors that refused to license] and we came up with our own way of doing something /very/ similar... but uniqely different enough that we could protect it with our own patent. If you can come up with your own method to accomplish the same job... but make it uniquely different enough from the other two patents... you could then secure you own patent to protect against suits from the other patent holders.

Some companies actively create a patent portfolio for the purpose of creating litigation... while others take the approach that it was best to build the portfolio so you can negotiate and defend when a claim comes against you.